Property from the Inside

While the state has a role to play in promoting the common good, left unchecked by constitutional strictures the regulatory state will crowd private property out of public life. Without private property, our nation would be impoverished not only materially but also morally. The second in a two-part series.

As I mentioned yesterday, this term brings to the Supreme Court three cases centered on the takings clause of the Fifth Amendment, an important constitutional protection for private property. Underlying the legal disputes are fundamental differences about the importance of private property and the limits of the regulatory state. The cases raise the following questions: Are we a nation that values private property? And if so, why?

These questions press upon us because private property is perceived in influential circles as an impediment, possibly even a threat, to the general welfare. Private property is thought to serve purely individual interests, while the regulatory state champions public goods. Among other concerns, one hears that private property, especially when tied to capitalism, necessarily results in widespread material inequality, and that material inequality threatens equal rights of positive liberty and participation in civic life. Some scholars have gone even further and argued that, because all people enjoy equality before the law, the case for private property undermines itself. Any moral claim to a right to own must be universalized to all individuals, and therefore if one person has a right to own things, then everyone does. The state therefore has an obligation to redistribute stuff to ensure equality of ownership, and the argument for private property thus defeats itself.

In order to answer these challenges fully we must adopt an unfamiliar perspective on private property. Property is generally viewed from the outside. By looking at the institution of private property we can see that it serves many material ends. It has proven itself to be the best-known system for distributing resources efficiently to those who can make the most productive uses of them, for producing prosperity and lifting people out of poverty, and for meeting the material needs of the greatest number. Collective property systems have failed to match private property’s record on these counts. (Even Cuba has now quietly instituted a rudimentary system of private ownership of land.) But these observations do not go all the way to addressing the problem of inequality. If prosperity is achieved at the cost of inequality of ownership, and this inequality has moral implications, then we need some account of the moral value of private property, which takes into account the equal interest of all humans in benefitting from the institution.

In order to build such an account, we must view private property from the inside. It is not enough merely to look at property rights and the material benefits that result from them. We must also adopt the perspective of property owners and look along property rights toward the reasons for which owners exercise those rights. From this internal point of view we can see that private property enables people to pursue a variety of good ends, insulated from collective and other outside influences. One person uses property to pursue an education, another uses it to support a family, while a third uses property to create art. These are all valuable pursuits because they are directed toward good, albeit fundamentally different, ends. Property is the ultimate pluralistic institution. The uses of private property rights are not dictated by collective political decisions. Instead, they are determined by the free choices of individuals and communities, acting to promote a truly common good in all of its various aspects.

In adopting plans of action with respect to things, property owners and their collaborators change themselves; in a sense, they make themselves. They exercise personal autonomy. They also exercise the discipline of acting for reasons (including goods that others might not value), which causes them to tame their appetites, to delay gratification, and to resist the urge to conform.

And by adopting and carrying out complex plans of action, they create new reasons and states of being, and are freed of the tyranny of the present. In short, private property enables people to participate in the good of practical reasonableness. Practical reasonableness is a complex human good, which subsumes personal autonomy and self-constitution, prudence and responsibility, morally upright choice and action, and collaboration. It is the capacity for exercising practical reason that makes humans unique, and grounds the radical equality of all human beings before the law. In other words, private property enables human beings to be more fully human.

Private property performs this valuable service by securing the preconditions without which humans cannot exercise practical reason. It insulates owners and their collaborators from coercion. It opens possibilities for pursuing human goods of all kinds (not just material goods), which are available neither in systems of collectivist decision-making nor in those of purely individual appropriation. And it settles expectations, making possible the execution of complicated, collaborative, and long-term projects.

So, for example, the fact that the state stands ready to enforce one’s rights to use and to exclude others from one’s residence frees one to build a life within one’s home that others might not value. Suppose that Stan and Samantha own their home. They can rely upon their title to organize and publish a newsletter to express unpopular political views. They can exercise their right to encumber their home with a mortgage in order to obtain a loan, with which they can subsidize their newsletter. And the security of their title means that they can finish what they start; they need not worry about their equipment being coercively turned over to someone else in the middle of publication. Throughout this project, Stan and Samantha are attaining two significant, human achievements. They are realizing their chosen end—political expression and participation. And they are exercising reason, and so making themselves more fully reasonable.

Furthermore, private property has this moral value not only for the people we generally call “owners,” but also for those with whom those people cooperate. Stan and Samantha’s property rights benefit all who are in their home (both of them, their children, guests and visitors), not just in material ways, but also by enabling them to plan and choose. It enables them to plan and choose together with family, and thus to realize the good of human community in its most elemental and important form. And it promotes the communities of self-constitution of which they are a part, such as their political party.

Indeed, private property does its best moral work when it supports other civic institutions. Children first exercise responsibility over things by using resources given or entrusted to them by their parents. Religious congregations, charitable organizations, and neighborhood associations must practice prudence and mutual submission in order to achieve their objectives with finite resources. Employees are given access to resources and skills that they would not have but for the security that property law assures to their employers, and the habits, practices, and money that they obtain during the course of their employment can enable them to launch their own commercial and industrial ventures.

This is why inequality of actual ownership does not, by itself, jeopardize the equal interest that all persons have in exercising liberty with respect to things. The argument for private property is an argument for an equal eligibility to own. All humans possess the capacity to reason, and thus the law should deny to none the opportunity to exercise dominion over things. But this does not require the state to redistribute things in order to ensure that all people actually own things. Indeed, widespread political redistributions actually threaten to undermine the moral benefits that private property produces. Equal distribution of stuff would rupture the connection between material wellbeing and the virtues that give rise to it, and would unsettle the communities that rely upon property rights for their self-constituting plans of action. There are, of course, good reasons for limited redistributions, such as social welfare programs. But these programs also must not be allowed to threaten the moral development of their beneficiaries.

None of this should be taken to suggest that property rights are absolute. Precisely because it secures freedom of choice and action, private property can be employed both for good ends and for evil ones. But this also does not undermine the case for private property. Instead, it commends certain features of property law. There are ways to develop property law so that it thwarts harmful and spiteful exercises of rights without dissolving the owner’s domain. And property law need not privilege purely self-indulgent uses of property. Indeed, property law rightly supports charitable action, not only for the material wellbeing of charity recipients but also for the moral wellbeing of charitable donors.

Finally, the state has a role to play both in guarding against harms and in coordinating the actions of property owners toward a common good. But Justice Oliver Wendell Holmes, Jr., had reason to worry that, left unchecked by constitutional strictures, the regulatory state would crowd private property out of public life. Without private property, our nation would be impoverished not only materially but also morally.

Adam McLeod isan Associate Professor at Faulkner University’s Thomas Goode Jones School of Law and a visiting Fellow of the James Madison Program in American Ideals and Institutions at Princeton University.

About Adam J. MacLeod
Adam MacLeod is an Associate Professor of Law at Faulkner University, Jones School
of Law, where he has taught since 2007. During the 2012-2013 academic year, he is a
visiting fellow at the James Madison Program in American Ideals and Institutions at
Princeton University. Professor MacLeod received his B.A., summa cum laude, from Gordon College (MA) and his J.D., magna cum laude, from the University of Notre Dame Law School. His works have appeared in peer-edited journals and law reviews, in the U.S. and elsewhere, and he contributes to The Public Discourse, Land Use Prof Blog, and The Journal of Jurisprudence.